Court of Appeal
Ghaoui v Waltham Forest London Borough Council
[2024] EWCA Civ 405
2024 April 18; 24,
Peter Jackson, Newey LJJ, Cobb J
Local governmentHousing dutyCouncil’s dutyDuty to rehouseClaimant wishing child to be educated in a school only open to those of the Islamic faithLocal authority finding offered accommodation suitable where such schooling not availableWhether offer of accommodation infringing claimant’s Convention right to freedom of religionWhether accommodation offered “suitable” so as to discharge obligation upon local authority Housing Act 1996 (c 52), s 193 Children Act 2004 (c 31), s 11 Human Rights Act 1998 (c 42), Sch. 1, Pt I, art 9

The claimant, a married man with two young children, made an application for homelessness assistance to the local housing authority. The authority accepted that it owed the claimant the main housing duty under section 193 of the Housing Act 1996, and offered the family a 12-month fixed term assured shorthold tenancy with a private landlord, some 20 miles away from their previous address within the local authority’s area. The claimant requested a review of the suitability of the offered accommodation, contending, inter alia, that the distance of the property from the nursery which the older child attended at a private fee-paying school, open only to those of the Islamic faith, made the property unsuitable. The reviewing officer rejected that contention, concluding that the offered accommodation was suitable, that there was no legal duty to provide accommodation that allowed the children to attend a specific religious school and that in offering the accommodation, the council had had sufficient regard to the welfare of the claimant’s children. The claimant appealed, contending that the reviewing officer had failed properly to take account of the family’s right to freedom of religion under article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms and had failed to treat the claimant’s preference that his child attend a particular single-faith school as a relevant circumstance. The recorder dismissed the appeal.

On the claimant’s further appeal —

Held, appeal dismissed. An assessment of the suitability of accommodation offered by a local housing authority called for a decision-maker, whether a housing officer or a reviewing officer, to identify all the relevant factors and to give them the weight that seemed appropriate in their professional judgement. In doing so, they were guided by the terms of the primary and secondary legislation and the Homelessness Code, but the decision was a practical one, rooted in the circumstances of the individual case. It was made within a legal framework and had legal consequences, but the obligation was to reach a sound decision, not to carry out a legal analysis. Although homelessness decisions might raise issues that engaged a Convention right, instances where a decision designed to relieve homelessness would amount to a violation would surely be very rare. The provision in para 1.20 of the Homelessness Code that housing authorities should consider the human rights implications of their actions did not compel decision-makers to identify rights and potential violations, nor did it require that, contrary to settled principles, human rights be respected through processes rather than outcomes. Although factors engaging a Convention right were to be given full and proper consideration, they were not to attract undue, still less predominant, weight by virtue of their Convention label. It was all part of the same question, lawful application of a proper definition of suitability to the circumstances of the case. In the present case, the claim that the decision-maker had been bound to recognise that she was dealing with a Convention right was contrary to authority, since it focused on process and not outcome, and insisted that the decision-maker had to engage in a structured human rights analysis rather than an ordinary exercise of identifying and weighing up relevant factors. The claimant had had no right to expect the local authority to place any particular weight on his religiously-motivated choice of school, and certainly not such weight as would be necessary to result in a more convenient property being offered. It followed that there had been no interference with his article 9 rights. Although the question of justification did not therefore arise, had it done so, the claimant would likely have faced an insuperable task in showing that his faith-based preference should give him priority over other homeless persons (paras 34–38, 41, 42, 43).

R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, HL(E) applied.

Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925, [2005] LGR 241 considered.

Liz Davies KC and Kevin Gannon (instructed by Edwards Duthie Shamash Solicitors) for the claimant.

Michael Mullin and Scarlet Taylor-Waller (instructed by Solicitor, Waltham Forest London Borough Council) for the local authority.

Matthew Brotherton, Barrister

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